PERMFILE47064 - Laserfiche WebLink

Home Browse Search

45i/2 Federa! Register/ Vol. 66, No. 11 / V/ednesday; January 17, 2001 /Rules and Regulations beyond the scope of today's rulemaking. However, we do not agree that the section 404 program is inconsistent with federalism principles. Controlling [he impacts of pollution and protecting natural resources has long been a matter of joint Federal and State concern, and the Federal government long has legislated in the field of environmental pollution control and resource protection. Section 404 does not constitute conventional land use planning or zoning, but instead is a form of environmental protection and pollution control that leaves the ultimate determination of land use to State and local authorities consistent with Federal pollution control requirements. In a case involving impacts of mining on Federal lands, the U.S. Supreme Court expressed the distinction this way: "Land use planning in essence chooses particular uses for the land; environmental regulation, at its core, does not mandate particulaz uses of the land but requires only that, however the land is used, damage to the environment is kept within prescribed limits." (Cnlifornio Coastal Commission v. Granite Rock Co., 480 U.S. 572, 587 (1987)). Section 404 does not dictate the particular use for a parcel of property; it regulates the manner in which the proposed use can be accomplished by avoiding andior mitigating the environmental impacts of a discharge of dredged or fill material into waters of the U.S. One commenter argued that the proposed rule unlawfully expanded Constitutional limits to the Corps' ability to protect biological resources, by including protection of habitat with significant biological value but little or no commercial value. The commenter stated that such habitat does not involve interstate commerce, and as a result is beyond Federal powers and should be protected by State and local governments. This issue is not within the scope of today's rulemaking and raises questions about the definition of "waters of the U.S." which aze currently pending before the U.S. Supreme Court in SWANNC. In addition, nothing in today's rule limits a State or local government's ability to protect habitat and other resources. One commenter suggested that Federal regulation is not necessary because ample State and local authority exists to protect wetlands. Again, this issue is beyond the scope of today's rulemaking. We disagree about the lack of a need for a Federal presence in wetlands regulation. The Federal wetlands program both addresses interstate issues arising from wetlands protection, and helps support the States' own environmental objectives. For example, the section 404 program helps protect States from the effects that filling of wetlands in one State may have on water quality, flood control, and wildlife in another State. States with wetlands programs might coordinate closely with the Federal program, as a means of avoiding duplication and reducing any administrative burden. For example, States might choose to coordinate their environmental studies with Federal initiatives or to use Federal expertise in identification and mapping of wetlands. We also note that in the SWANCCcase, eight states filed an omicus brief explaining the benefits of 404 regulation to the states and expressing their support for such regulation (CA, IA, ME, NJ. OK, OR, VT, and WAJ. One commenter argued that no Federal reason has been demonstrated for regulating activities such as ditching and channelization, and the proposal should not be finalized until an economic analysis is completed that supports a valid Federal reason to "expand" the Corps' authority. Another commenter noted that the NMA decision has forced a number of States to incur significant financial costs by acting to stem further wetlands destruction, and that limited funding has prevented some States from stepping into the post-NMA loophole. We note that today's rule does not regulate on the basis of ditching and drainage activities, but instead on the presence of a discharge of dredged material into waters of the U.S., as called for under the CWA. Today's rule does not expand the scope of CWA section 404 program jtn•isdiction, nor establish a new program or new required processes affecting the regulated community. For these reasons, we do not agree that today's rule requires an economic analysis such as that called for by the commenter. We note that many Federal environmental programs, including CWA section 904, were designed by Congress to be administered at the State or Tribal level whenever possible. The clear intent of this design is to use the strengths of the Federal and State and Tribal governments in a partnership to protect public health and the Nation's resources. EPA has issued regulations governing State and Tribal assumption of the section 404 program (40 CFR part 233). The relationship between EPA and the States and Tribes under assumption of the section 404 Program is intended to be a partnership. With asstmption, States and Tribes assume primary responsibility for day-to-day program operations. EPA is to provide consistent environmental leadership at the national level, develop general program frameworks, establish standazds as required by the CWA, provide technical support to States and Tribes in maintaining high quality programs, and ensure national compliance with environmental quality standards. Currently two States (New Jersey and Michigan) have assumed the section 404 program. One Tribal commenter felt that the proposed rule impinges on Tribal sovereignty, in that it does not allow Tribal decisions to undertake ditching activities for flood control without Federal review. This commenter also contended that the agencies did not comply with Executive Order 13084 which would have required that the agencies consult with the Tribes on the proposed rule under certain circumstances. The commenter stated that the agencies' conclusion that the proposed rule will not significantly effect Indian communities nor impose significant compliance costs on Indian Tribal governments is erroneous. As mentioned above, today's rule does not change program jurisdiction. In addition, it does not create any new formal process. In fact, unlike the proposal, the final rule does not employ a rebuttable presumption, and also has been clarified to expressly provide that it does not shift any burden in any administrative or judicial proceeding under the CWA. We thus believe the rule does not create an impingement [o Tribal sovereignty or significantly affect Tribal communities. IV. Administrative Requirements A. Paperwork Reduction Act This action does not impose any new information collection burden or alter or establish new record keeping or reporting requirements. Thus, this action is not subject to the Paperwork Reduction Act. B. Executive Order 72866 Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must determine whether the regulatory action is "significant" and therefore subject to review by the Office of Management and Budget (OMB) and the requirements of the Executive Order. The Order defines "significant regulatory action" as one that is likely [o result in a rule that may: (1) Have an annual effect on the economy of 5100 million or more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or